Blackberries and barnyards: patent trolls and the perils of innovation

Abstract

This Article provides context for the ongoing debate on opportunistic licensing (or patent troll) litigation by pointing out that the same phenomenon occurred in the nineteenth century with respect to design patents on farm tools. This previously unexplored episode shows that trolls (or sharks, as they were called then) explode when patents are extended to inventions that: (1) are cheap to acquire; (2) are hard for a defendant to substitute away from; and (3) evolve incrementally. Modern information technology and basic farm tools share these traits, albeit for different reasons. The Article then compares the remedies proposed in each era and concludes that curbing trolls through a comprehensive reform is bound to fail. A better approach would seek either to abolish software and business method patents or reduce the arbitrage spread by raising the maintenance fees charged to retain patents.